Donnell v. U.S.
| Decision Date | 25 June 1982 |
| Citation | 682 F.2d 240,220 U.S. App. D.C. 405 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0392).
Gerald Braddock, of the bar of the Supreme Court of Mississippi, pro hac vice by special leave of the Court, Vicksburg, Miss., and George C. Cochran, for Donnell, et al., appellants in No. 81-1471 and cross-appellees in No. 81-1545. Douglas C. Herbert, Jr. and F. Joseph Nealon, Washington, D. C., also entered appearances for Donnell, et al.
Frank R. Parker, Jackson, Miss., with whom William L. Robinson, Washington, D. C., was on the brief for Eddie Thomas, Sr., et al., appellees in No. 81-1471 and cross-appellants in No. 81-1545.
Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., entered an appearance for appellee, United States of America.
Before TAMM and WILKEY, Circuit Judges, and GESELL, * United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge WILKEY.
This is an appeal from the district court's award of $73,669.88 in attorneys' fees to appellees, defendant-intervenors below in a suit under section 5 of the Voting Rights Act. 1 Appellants challenge the intervenors' entitlement to any fees at all, as well as the court's particular determinations in calculating the award. Appellees have cross-appealed, arguing that the district court erred in choosing the geographical market for determining the appropriate hourly rate. We find merit in both positions, and reverse and remand to the district court for further proceedings.
In 1970 the Board of Supervisors of Warren County, Mississippi, adopted a redistricting plan which failed to receive approval of the United States Attorney General and ultimately was enjoined by the District Court for the Southern District of Mississippi because it diluted black voting strength. 2 In 1978 the Board adopted a new plan. Rather than seeking approval of the Attorney General, the Board brought an action against the United States in the District Court for the District of Columbia seeking a declaratory judgment that the new plan did not have a racially discriminatory purpose or effect. Seven black voters in Warren County intervened on the side of the United States.
After a year and a half of discovery, the district court ruled on 31 July 1979 that plaintiffs were not entitled to a declaratory judgment. The court held that the Board had failed to provide a legitimate nonracial justification for its plan, which would diminish black voting strength. On 19 February 1980 the Supreme Court summarily affirmed. 3
Subsequently a new private action was filed in the District Court for the Southern District of Mississippi challenging the preexisting voting districts. Finding the districts unconstitutional, the district court imposed a plan proposed by the Department of Justice. 4 In elections held under this plan several black officials were elected.
On 1 May 1980 intervenors filed a motion for an award of $89,109.38 in attorneys' fees pursuant to Title 42, U.S.C. section 1973l (e), which authorizes the district court to award a reasonable fee to the prevailing party. 5 The request covered 381.05 hours worked by lead counsel Frank Parker, chief counsel for the Jackson, Mississippi, office of the Lawyers' Committee for Civil Rights Under Law; 191.35 hours worked by James Winfield, a practitioner in Vicksburg, Mississippi; 47 hours worked by Richard Kohn, an attorney with the Lawyers' Committee's Washington, D. C., office; and 30 hours worked by Barbara Phillips, a Lawyers' Committee attorney who worked on the attorneys' fees application. Parker and Kohn requested an award at the rate of $100 per hour, Winfield at the rate of $77 per hour, and Phillips at the rate of $75 per hour; the requested rates for Parker and Kohn were based on the District of Columbia market, whereas the markets relied on by Winfield and Phillips were not specified. Multiplying rates by hours resulted in a lodestar of $59,406.25. In addition, intervenors requested an upward adjustment of the lodestar by a factor of fifty percent, which would produce a total of $89,109.38.
Appellants opposed the request on several grounds, and also requested an evidentiary hearing, which the district court denied. On 19 February 1981 intervenors were awarded $50,400 in attorneys' fees. The court found that the relevant geographical market was Mississippi rather than the District of Columbia, and awarded hourly rates it found prevailing in Mississippi: $60 an hour for Parker and Kohn, $50 an hour for Winfield, and $40 an hour for Phillips. The court allowed all hours claimed by all attorneys, except for 9.2 hours of deposition time claimed by Winfield but specifically contested in affidavits filed by appellants. The court then increased the lodestar figure by fifty percent, citing the contingent nature of the representation, the novel issues presented in the case, and the attorneys' unusually high quality of representation.
Intervenors subsequently sought reconsideration of the award based on recent decisions allowing hourly rates in Mississippi in excess of those allowed in the original decision. On 20 March 1981 the court amended its award by increasing the hourly rate for Parker and Kohn to $85 per hour and for Winfield and Phillips to $60 per hour. The court's ruling on the number of hours expended and on the adjustment to lodestar remained the same, resulting in a total award of $73,699.88.
This appeal followed. Appellants challenge intervenors' entitlement to any award, as well as the reasonableness of the hours worked by Winfield, Parker, and Kohn, the hourly rates awarded by the district court, and the fifty percent adjustment factor. Intervenors, appellees here, have cross-appealed on the issue of the hourly rates. They assert that the court erroneously used Mississippi rates rather than rates in the District of Columbia, where the suit was brought.
We now reverse and remand to the district court for further proceedings.
Title 42 U.S.C. section 1973l (e) provides:
In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 6
The purpose of this provision, as well as of section 1988, 7 a similar provision providing for award of attorneys' fees to prevailing parties in civil rights cases generally, is the familiar one of encouraging private litigants to act as "private attorneys general" in seeking to vindicate the civil rights laws. As the Senate Report on section 1973l (e) stated, 8 Although awarding fees pursuant to section 1973l (e) is discretionary, the legislative history makes clear that a prevailing party usually should recover fees: "A party seeking to enforce the rights protected by the Constitutional clause or statute under which fees are authorized by these sections, if successful, 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Newman v. Piggy (Piggie) Park Enterprises, Inc., 390 U.S. 400, 402 (88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)." 9
Had this been a successful suit by these intervenors as plaintiffs against the Board of Supervisors, then, their entitlement to attorneys' fees would hardly be in doubt. The result of the litigation furthered the purpose of the Voting Rights Act. This case presents a more difficult problem, however, because the suit was brought by the Board of Supervisors against the United States, as represented by the Department of Justice. Intervenors participated on the side of the Department of Justice, but the significance of their efforts is in controversy. Appellants contend that intervenors' participation was subordinate and indeed unnecessary. They believe that the Department of Justice needed no aid in defending the suit, and prevailed on the basis of its own efforts. In appellants' view this duplicative role constitutes a "special circumstance" that renders an award of fees unjust. Intervenors counter that their aggressive litigation efforts impelled the Department of Justice into a strong defense, and that they produced facts and arguments of substantial value to the district court.
The legislative history of section 1973l (e) is silent on the appropriate standard for awarding attorneys' fees to intervenors who participate on the side of the United States in a successful suit. There is a single reference to attorneys' fees for such a party: 10 This indicates that intervenors may be considered as prevailing parties entitled to an award of attorneys' fees. But we do not believe Congress intended that such an award be as nearly automatic as it is for a party prevailing in its own right.
In the first place, the legislative history of sections 1973l (e) and 1988 emphasizes over and over again the critical goal of enabling private...
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